Petition for Review of an Order
of the Board of Immigration Appeals
A72 778 728/726

SUBMITTED AUGUST 9, 2000--DECIDED DECEMBER 7, 2000

Before POSNER, RIPPLE and WILLIAMS, Circuit
Judges.

RIPPLE, Circuit Judge. George Reddy
Ambati and his son, Pranaykumar Ambati
("Pranaykumar"), practicing Christians
and natives and citizens of India, seek
review of the decision of the Board of
Immigration Appeals ("BIA") dismissing
their appeals. The Ambatis contend that
the BIA lacked substantial evidence for
its determination that Mr. Ambati failed
to demonstrate either past persecution or
fear of future persecution on account of
his religion. They further contend that
the BIA erred in upholding the
Immigration Judge's ("IJ") denial of
their request for a continuance to allow
their attorney time to prepare their
case. They also challenge the Board's
conclusion that Pranaykumar's appeal was
untimely. For the reasons set forth in
the following opinion, we affirm.
I
BACKGROUND

The Ambatis are practicing Christians of
the Roman Catholic faith. Both Mr. Ambati
and his wife come from Christian farming
families who still reside in villages in
India. They have two children--a son born
in India and a daughter born in the
United States. Although Mr. Ambati
resides with his son in the United
States, his wife and daughter reside in
India. Mr. Ambati's parents and all six
of his brothers and sisters live in India
in close proximity to one another. Mr.
Ambati supports his parents and siblings
from his earnings in the United States.

A. Mr. Ambati's Testimony before the
Immigration Judge

Mr. Ambati completed both high school
and college in India. He first arrived in
the United States on a nonimmigrant
student visa in 1974. He received a
master's degree from Oklahoma State
University and, in 1977, he returned to
India.

Mr. Ambati remained in India until 1991.
He lived and worked in Nagpur, a city
located 200 miles from his native village
where his parents still reside and
operate a family farm. While in Nagpur,
Mr. Ambati worked as an environmental
scientist for the Indian government from
1977 to 1991. During this period, he
experienced no difficulties in Nagpur as
a result of being Christian and was able
to attend church without "physical
handling" by those "hostile" to
Christians. R.114. However, he was afraid
of physical harm during his monthly
visits to his parents in their village.

Although Mr. Ambati confirmed that his
parents still regularly attended church
in their village, he stated that his
family had been subject to "religious
attacks" for the last ten years. R.115.
Mr. Ambati explained that, as Christians,
his family was neither liked nor accepted
by their neighbors. In fact, on several
unspecified occasions, his father and his
brothers were attacked and beaten at
night while returning from the fields. In
addition, Hindu farm workers would steal
from Mr. Ambati's father's farm and would
prevent other Hindus from working there.

In 1991, Mr. Ambati again entered the
United States on a nonimmigrant student
visa, this time to pursue a doctorate
degree at the Illinois Institute of
Technology in Chicago. He explained that
becoming a student was the only
opportunity for him to leave a country he
"very much wanted to . . . leave." R.120.
Soon after he arrived in Chicago, he
experienced serious financial
difficulties that caused him to leave
school and eventually move with his wife
and two children to New York City to
work. Shortly after arriving in New York
in 1992, he, his wife, and his son
applied for asylum/1 because they were
alarmed by news from Mr. Ambati's parents
that they were having difficulty with
their crops and that Mr. Ambati's father
had been attacked and beaten one night
while returning home from the fields.

B. Administrative Proceedings
1.

With the help of an attorney, Mr. Ambati
filed a request for asylum in September
1992 and included his wife and
Pranaykumar in his application. He
alleged that, as Christians, he and his
family had suffered persecution by
Hindus. Responding to an order to show
cause, Mr. Ambati appeared at a
deportation hearing in October 1996
without an attorney. The Immigration
Judge explained in detail the purpose of
the hearing as well as Mr. Ambati's
rights in the proceedings. The IJ then
asked if the Ambatis planned to retain
counsel to represent them. When Mr.
Ambati replied that they did, the IJ
continued the hearing until May 19, 1997.
The IJ warned Mr. Ambati, however, that
he would grant no further continuances
and urged Mr. Ambati to tell his counsel
that his hearing date would not be
extended.

Mr. Ambati retained counsel two weeks
before his scheduled hearing and informed
her that he previously had retained an
attorney in New York in 1992 to assist
him in filing his application for asylum.
On May 19, Mr. Ambati and Pranaykumar
appeared at the scheduled hearing, and
their newly retained counsel requested a
continuance. Counsel explained that she
had overestimated the New York attorney's
degree of involvement in the Ambatis'
case; the case had not been prepared for
the hearing, as she had believed, and
thus she did not feel prepared to go
forward. The IJ suggested to counsel that
she could withdraw her notice of
appearance and Mr. Ambati could proceed
pro se. The IJ stated he would go forward
with the hearing because not only had he
granted Mr. Ambati a seven-month
continuance, but also had explained
clearly that no further continuances
would be given. When asked by the IJ if
he wanted the attorney to represent him,
Mr. Ambati stated that he did. During the
course of the hearing, the IJ
specifically asked Mr. Ambati whether he
would leave the United States if ordered
to do so. Mr. Ambati replied, "I beg your
Honor to help me to live here . . .
because of the serious problem which we
are facing."/2 R.137-38.

After considering the evidence,/3 the
IJ concluded that Mr. Ambati's request
for asylum fell short of establishing
either past persecution or a well-founded
fear of future persecution. The IJ
determined that there was no basis to
find that Mr. Ambati suffered past
persecution because Mr. Ambati freely
practiced his religion, worked in a
government position, and was never
tortured, detained, or threatened on
account of his Christian faith. Moreover,
the IJ reasoned, the economic and
physical hardships experienced by Mr.
Ambati's father and brothers did not
support Mr. Ambati's claim for asylum.
Lastly, the IJ opined that Mr. Ambati's
application for asylum was nothing more
than a mechanism to prolong his stay in
the United States. Consequently, the IJ
denied Mr. Ambati both asylum and
withholding of deportation and ordered
him deported to India. The IJ refused to
allow Mr. Ambati voluntary departure
because he found that Mr. Ambati desired
to remain in the United States "at all
costs." R.71 (internal quotation marks
omitted). As for Pranaykumar, the judge
also denied him both asylum and
withholding of deportation, but granted
him voluntary departure. Finally, the
judge terminated the proceedings
regarding Mrs. Ambati because she had
left the United States before the initial
deportation hearing.

2.

On appeal, the BIA affirmed the IJ's
decision and adopted his findings and
conclusions insofar as they regarded Mr.
Ambati. In addition, the Board found
that, because Mr. Ambati was allowed
sufficient time to secure an attorney and
prepare his case after the first
continuance had been granted, the IJ did
not abuse his discretion when he refused
to grant Mr. Ambati another continuance.
The BIA reasoned that Mr. Ambati received
due process because he was on notice that
the IJ was unwilling to grant
furthercontinuances and that Mr. Ambati
was able to fully and fairly present his
case. Lastly, the BIA determined that
Pranaykumar's appeal was untimely because
it had been filed well beyond the filing
deadline of 30 days after the IJ's
decision. Mr. Ambati now seeks review of
the BIA's decision.

II
ANALYSIS

Mr. Ambati argues that the BIA
erroneously concluded that his
experiences in India, and those of his
family members, did not amount to
persecution./4 In addition, he contends
that the BIA erred in upholding the IJ's
decision in light of his due process
challenge. The IJ's refusal to grant a
continuance, Mr. Ambati reasons, deprived
him of his right to counsel and his right
to present fully his case. Finally, Mr.
Ambati challenges the BIA's unwillingness
both to overturn the IJ's denial of
voluntary departure for him and to
consider the merits of Pranaykumar's
appeal. We address each of these
contentions in turn.

A. Persecution

Mr. Ambati contends that the BIA erred
in denying him asylum because the
evidence established not only that Mr.
Ambati and his family were harassed and
abused, but also that the livelihood of
Mr. Ambati's parents was impaired on
account of the family's Christianity. We
review the BIA's asylum determination
under the substantial evidence test. See
Petrovic v. INS, 198 F.3d 1034, 1037 (7th
Cir. 2000) (quoting Sivaainkaran v. INS,
972 F.2d 161, 163 (7th Cir. 1992)). We
shall disturb the BIA's findings "only if
the record lacks substantial evidence to
support its factual conclusions." Malek
v. INS, 198 F.3d 1016, 1021 (7th Cir.
2000).

To be considered for asylum, Mr. Ambati
was required to demonstrate that he
qualifies as a refugee. Congress has
given the Attorney General discretion to
grant asylum if an applicant qualifies as
a refugee under 8 U.S.C. sec. 1101(a)
(42)(A). See 8 U.S.C. sec.
1158(b)(1);/5 see also Kaczmarczyk v.
INS, 933 F.2d 588, 593 (7th Cir. 1991).
The Immigration and Nationality Act
defines "refugee" as

any person who is outside any country of
such person's nationality . . . and who
is unable or unwilling to return to, and
is unable or unwilling to avail himself
or herself of the protection of, that
country because of persecution or a well-
founded fear of persecution on account of
race, religion, nationality, membership
in a particular social group or political
opinion . . . .

8 U.S.C. sec. 1101(a)(42)(A).

Therefore, to prove that he is a refugee
within the meaning of the statute, Mr.
Ambati must come forward with evidence
either of a well-founded fear of future
persecution or of past persecution. See
Marquez v. INS, 105 F.3d 374, 378 (7th
Cir. 1997). If an alien establishes past
persecution, there is a rebuttable
presumption that he also has a well-
founded fear of future persecution and
therefore should be granted asylum. See 8
C.F.R. sec. 208(b); see also Asani v.
INS, 154 F.3d 719, 722 (7th Cir. 1998).
Mr. Ambati bases his asylum claims on
both past persecution and a well-founded
fear of future persecution. We turn first
to Mr. Ambati's claims of past
persecution.

1.

This court has described persecution as
"punishment or infliction of harm for
political, religious, or other reasons."
Tamas-Mercea v. Reno, 222 F.3d 417, 424
(7th Cir. 2000) (internal quotation marks
and citations omitted). Although the term
"persecution" includes actions less
severe than threats to life or freedom,
"actions must rise above the level of
mere harassment to constitute
persecution." Id. (internal quotation
marks and citations omitted). Mr. Ambati
contends that he established past
persecution through his testimony about
the loss of his family's economic
livelihood due to physical attacks,
thievery, and economic sabotage by Hindu
neighbors. Mr. Ambati, however,
identified no injury to himself, to his
wife, or to his children. Indeed, while
in India, Mr. Ambati was employed
steadily in a government job and
regularly attended church. He offered no
evidence of any adverse job actions
against him, nor evidence of any physical
attacks upon him resulting from his reli
gious beliefs. Indeed, Mr. Ambati's
derivative persecution claims are
indistinguishable from those we rejected
in Tamas-Mercea and Bereza v. INS, 115
F.3d 468 (7th Cir. 1997)./6
2.

Mr. Ambati also has failed to establish
that the BIA's determination with respect
to fear of future persecution is
unsupported by the record. "In order to
be granted asylum on the basis of future
persecution, Mr. [Ambati] must have a
'well-founded' fear of persecution."
Tamas-Mercea, 222 F.3d at 426. To have a
well-founded fear of persecution, "an
applicant must show both that he
genuinely fears being persecuted and that
his fear is objectively reasonable."
Bereza, 115 F.3d at 472 (citations
omitted); see also Sofinet v. INS, 196
F.3d 742, 746 (7th Cir. 1999). In support
of his claim of future persecution, Mr.
Ambati details the same events and
actions that he put forward to support
his claim of past persecution: the
attacks on his family members and the
loss of the family's livelihood. However,
as set forth above, Mr. Ambati
historically has not been the target of
such attacks, and he has not come forward
with evidence that circumstances have
changed in India such that he now will be
at risk. Furthermore, Mr. Ambati's wife
and daughter voluntarily returned to
India nearly five years ago and have
remained there since without incident.
The absence of evidence of harm to Mr.
Ambati's immediate family undermines his
claim of a well-founded fear of
persecution. See Bhatt v. Reno, 172 F.3d
978, 982 (7th Cir. 1999) (citing Lwin v.
INS, 144 F.3d 505, 509 (7th Cir. 1998)).
Consequently, Mr. Ambati has not come
forward with evidence that his fears are
"objectively reasonable."/7

In addition, the record suggests that
Mr. Ambati's unwillingness to return to
India stems, at least in part, from his
fear of a diminished earning capacity,
rather than a fear of physical danger to
himself or to his family. Indeed, Mr.
Ambati acknowledges that he "sought the
refuge of safety and better opportunities
to support his extended family by coming
to the United States." Petitioner's Br.
at 5. However, a diminished earning
capacity, standing alone, cannot support
a grant of asylum. See Borca, 77 F.3d at
216 (stating that economic harm rises to
the level of persecution only if economic
disadvantage is both substantial and
deliberately imposed on account of
person's affiliation with particular
group or set of beliefs).

In sum, the record supports the BIA's
conclusion that Mr. Ambati failed to
establish past persecution or a well-
founded fear of future persecution on the
basis of religion. Mr. Ambati's chief
evidence of persecution concerns his
family members, not himself. Furthermore,
Mr. Ambati's stress and frustration over
his family's economic situation and the
antagonism they experience in their
relations with their Hindu neighbors do
not rise to the level of persecution for
purposes of the statute. See Skalak v.
INS, 944 F.2d 364, 364-65 (7th Cir. 1991)
("mild harassment" by itself does not
constitute persecution). Consequently, we
will not disturb the BIA's asylum
determination.

B. Lack of Due Process

Mr. Ambati also argues that the BIA
erred in upholding the IJ's decision not
to grant him a second continuance. He
contends that the IJ's ruling violated
his due process rights because the ruling
prevented his counsel from fully
presenting his claims. By not allowing
his newly hired counsel additional time
to prepare his case, Mr. Ambati
continues, the IJ placed his counsel "in
the position of a passenger on a runaway
bus, helplessly watching [the IJ] shred
her client" on various issues explored
during the hearing. Petitioner's Br. at
12.

Deportation hearings are civil
proceedings, and asylum-seekers,
therefore, have no Sixth Amendment right
to counsel. See Mojsilovic v. INS, 156
F.3d 743, 748 (7th Cir. 1998). They are
entitled, however, to protection of their
due process rights. The Fifth Amendment's
due process clause mandates that the
deportation hearing be fundamentally
fair. See Castaneda-Suarez v. INS, 993
F.2d 142, 144 (7th Cir. 1993).
Specifically, the alien should be
afforded the following opportunities: to
exercise his right to counsel of his
choice at his own expense, see 8 U.S.C.
sec. 1362; Batanic v. INS, 12 F.3d 662,
667 (7th Cir. 1993); to reasonably
present his evidence, see Castillo-Perez
v. INS, 212 F.3d 518, 526 (9th Cir.
2000); and to testify, see Mojsilovic,
156 F.3d at 749. To prevail on a due
process claim, a petitioner must produce
"concrete evidence" indicating that the
due process violation "had the potential
for affecting" the outcome of the
hearing. Kuciemba v. INS, 92 F.3d 496,
501 (7th Cir. 1996) (internal quotation
marks and citations omitted).

The record suggests that Mr. Ambati was
allowed a reasonable opportunity to fully
and fairly present his case and,
therefore, that he was not denied due
process. First, Mr. Ambati retained
counsel, offered evidence, and testified,
answering questions posed by his counsel,
by the IJ, and by opposing counsel. See
Jacinto v. INS, 208 F.3d 725, 728-29,
731-32 (9th Cir. 2000) (suggesting that
questioning of alien by the IJ and by
attorneys from both sides along with
opportunity for alien to present
"affirmative testimony" amounts to a
reasonable opportunity for alien to
present her evidence). Second, the IJ
clearly explained to Mr. Ambati his
rights in the hearing and several times
asked questions to clarify and elicit
further testimony from him. See Michel v.
INS, 206 F.3d 253, 259 (2d Cir. 2000)
(finding alien not deprived of right to
counsel because IJ went "well out of his
way" to ensure that alien understood what
was occurring in the hearing). Third, Mr.
Ambati's hearing had been continued for
seven months to allow him time to retain
counsel and prepare his case. See Ghajar
v. INS, 652 F.2d 1347, 1348-49 (9th Cir.
1991) (finding petitioner had sufficient
time to prepare and upholding denial of
further continuance even though attorney
was hired only a few days before the end
of a one-month continuance)./8 Finally,
Mr. Ambati offers no evidence that the
outcome of the hearing would have been
different had he obtained a continuance.
He has not set forth any evidence that
would have been presented or arguments
that would have been made had his counsel
been given additional time to prepare his
case. Consequently, assuming a due
process violation occurred, Mr. Ambati
has not come forward with evidence that
the violation affected the outcome of the
hearing.

C. Denial of Voluntary Departure

Mr. Ambati next argues that the IJ
wrongly denied him voluntary departure
and that the BIA erred by not correcting
this "arbitrary and capricious" decision.
As noted by the BIA and confirmed by our
review of the record, however, Mr. Ambati
never appealed the denial of voluntary
departure to the BIA. Thus, he has waived
this argument by failing to present it
first to the BIA. See, e.g., Mojsilovic,
156 F.3d at 748 (stating that the court
lacks jurisdiction to consider issues not
first presented to the BIA).

D. Timeliness of Appeal

Finally, Mr. Ambati argues that the BIA
erred when it dismissed Pranaykumar's
appeal as untimely. He notes that the BIA
plainly considered arguments raised by
Pranaykumar's appeal when it decided Mr.
Ambati's case. Although it is unclear why
the BIA chose to acknowledge
Pranaykumar's arguments in deciding Mr.
Ambati's appeal, Pranaykumar's appeal was
clearly untimely. His appeal was filed on
August 4, 1997, nearly two months after
the June 18, 1997 deadline for filing.
See 8 C.F.R. sec. 3.38(b), (c) (2000).
The Ambatis do not challenge the accuracy
of these dates, and, consequently, we see
no basis for reversing the BIA's
decision.

Conclusion

For the foregoing reasons, the Ambatis'
petition for review is denied, and the
BIA's decision is affirmed.

AFFIRMED

/1 The Ambatis' daughter is a United States citizen;
she was born several months after Mr. Ambati
began studying in Chicago.

/2 Mr. Ambati did not specify the problem to which
he referred.

/3 Apart from his own testimony and the statements
in the Ambatis' applications, Mr. Ambati submit-
ted some documentary evidence: 1) two articles--a
1991 article from a Bombay newspaper reporting
recent attacks on Christians by "toughs" due to
a dispute over water, R.41, and an undated arti-
cle from an unspecified source reporting an
effort by a Hindu organization to bring Chris-
tians who were formerly Hindus back into the
Hindu fold, R.40; and 2) an April 1996 affidavit
from Mr. Ambati's father confirming attacks on
family members and property, in which he stated
that "Hindu families bore community feelings
against the Christian families[,]" "our living
here has become most miserable[,]" and that,
because "our family is being harassed at our
village[,] it would be better if the case is
considered sympathetically for a green card."
R.158-60. The INS submitted two documents from
the United States Department of State: 1) a May
1997 advisory opinion noting both that there were
no "serious outbreaks of anti-Christian violence
in recent years" and that Christians "have a
high
level of acceptance in Indian society," R.153;
and 2) a report on human rights practices in
India for 1995 containing no mention of anti-
Christian activities, R.145-51.

/4 Pranaykumar's application for asylum is deriva-
tive of his father's; the outcome of Mr. Ambati's
case determines the result of Pranaykumar's case.
See 8 U.S.C. sec. 158(b)(3) (2000); 8 C.F.R. sec.
207.7(a) (2000). Consequently, we address the
substantive claims made in this appeal in terms
of how they relate to Mr. Ambati. The timeliness
of Pranaykumar's appeal, however, is addressed
after the common, substantive issues.

/5 8 U.S.C. sec. 1158(b)(1) states: "The Attorney
General may grant asylum to an alien who has
applied for asylum in accordance with the re-
quirements and procedures established by the
Attorney General under this section if the Attor-
ney General determines that such alien is a
refugee within the meaning of section
1101(a)(42)(A) of this title."

/6 In those cases, sons of parents who had suffered
persecution under former communist regimes argued
that they should be granted asylum based on the
persecution of their family members. We declined
to recognize the derivative claims in those
circumstances as meriting asylum. In Tamas-
Mercea, for example, we stated:

If Mr. Tamas personally had suffered the type of
harm inflicted on his family members, we would
have little trouble concluding that he had suf-
fered persecution within the meaning of the
statute. Mr. Tamas testified that his father,
grandfather, and uncle were arrested and beaten
for opposing collectivization. As well, his
father was beaten in 1991, when he attempted to
recover his family property. However, Mr. Tamas
does not argue that he was subjected to this type
of treatment. He, instead, claims a type of
derivative persecution, that which arose from the
physical abuse of his family members and the
discrimination he personally endured because of
his family's opposition to the communist regime.

. . .

Here, as in Bereza, it was Mr. Tamas' family
members who suffered persecution as a result of
their political beliefs. Although Mr. Tamas did
suffer some economic harm and personal humilia-
tion as a result of his family's activities, the
circumstances here are not sufficient to estab-
lish his persecution for purposes of the statute.

Tamas-Mercea, 222 F.3d at 424.

/7 Because we find that Mr. Ambati's fears are not
objectively reasonable, we need not reach the
issue of whether Mr. Ambati's fears are genuine.

/8 Mr. Ambati gave no reason why he was unable to
retain counsel until two weeks before his hearing
date.